Thoughts of an activist lawyer

Tag Archives: disputed territory

The news reported that China had recently blocked delivery of food supplies to our troops holed up in a derelict US ship in Ayungin shoal. To many, this is another first since it is the very first concrete step taken by China to take possession of the disputed shoal from us. In reality, though, this recent act is but another manifestation of China’s long-term overall maritime policy in relation to the West Philippine Sea and the rest of the world.

China’s defense and maritime policies are contained in several printed policy papers beginning in 1998. This was updated in April 2013 and is entitled “The Diversified Employment of China’s Armed Forces.” According to this document, the Chinese policy is to “safeguard its border and promote its coastal security.” The document states that the role of Chinese armed forces is “to defend and exercise jurisdiction over China’s land borders and sea areas.” In the same paper, China regards the West Philippine seas as its coastal waters, the defense of which enjoys the same priority as quashing any attempt at achieving independence of Taiwan and opposing calls for the right to self-determination of Tibet.

Unlike the Philippines, China has a printed policy paper on its short-, medium- and long-term maritime policy. Its overall objective is to resurrect China’s old glory of being a world maritime power by 2050. Meanwhile, it is pursuing two short- and medium-term goals: during the first phase concluding in 2000, the People’s Liberation Army shall have acquired sea-control power within its coastal waters. During the second phase, which is from 2010-2020, the PLA shall have achieved a kind of sea-denial capability within its first island chain in the West Pacific, the West Philippine Sea. It is precisely this second goal which explains China’s recent actions in Ayungin. If the printed maritime policies are to be followed, this means in fact that China will not only take control and possession of Ayungin, it aims also to occupy all other disputed islands, shoals and reef, even the biggest island under our occupation, Kalayaan. The issue is not if, but when it will actually do so.

It is precisely this maritime defense policy that gives urgency to an early resolution of our arbitral claims now pending with the Permanent Court of Arbitration. Unless the tribunal rules on the validity of China’s nine-dash lines, China will implement its 50-year maritime policy in a manner that treats the entirety of the West Philippines Sea encompassed by these lines as its internal and territorial waters. For what it’s worth, the initiation of the arbitration will be remembered forever as PNoy’s best foreign policy initiative.

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I have been to the island of Marinduque twice in a time span of a month, The reason is to explain the $20-million dollar offer made by Barrick Gold, the biggest gold mining company in the world, to settle the suit of the province filed against it in 2005 currently pending in a Federal Court of Nevada.

Since I am not qualified to practice in the United States, my participation in the lawsuit was only as an expert witness on the binding nature of international environmental law to the United States. One of the cornerstones of environmental law is the so-called “polluter pays principle”, which mandates that entities that cause pollution must pay for the clean-up.

The US Coast Guard has estimated that no less than 100 million dollars is required to clean up the 200 million tons of mine tailings dumped into the island’s rivers and waters. The problem though is that meanwhile, the Supreme Court of the United States ruled in the case of Kiobel vs., Shell that henceforth US courts should not exercise jurisdiction over claims against foreign corporation for acts which did not take place in the territory of the United States. Kiobel was s a case under the Alien Tort Claims act that authorizes US courts to exercise extra-territorial jurisdiction against respondents found in the US for violations of International Law. This statute has been utilized since the 1980s as a means to hold despots responsible for their acts of extralegal killings, torture and enforced disappearances since the case of Filartiga involving a former Panamanian despot. This was also the cause of action of the martial law victims against the estate of Marcos.

In 2013, the US Supreme Court in Kiobel held that henceforth, US courts cannot exercise jurisdiction versus foreign corporations for torts committed overseas solely because these foreign corporations’ shares are listed in the stock market in the US or because they have a commercial presence in the US. Today, the US Supreme Court requires the following as the test for the exercise of US jurisdiction: Do they “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application?”

Unfortunately, much as I would want a higher settlement for Marinduque, the pending case against Barrick appears to be barred by the test of Kiobel. This is because Barrick is a Canadian company and the acts that led to the environmental damage were done in the Philippines. Sad to say, the province has become of the many victims of the Kiobel test. But hey, $20 million dollars is still about a billion pesos. This is hardly a sum of money that can be considered peanuts to to a province that earns only P200 million annually.

China’s failure to remove its vessels from Panatag Shoal is clear evidence of Chinese shadow play in the resolution of the dispute. Remember that about a month ago, Chinese authorities declared a fishing ban in the area for a period of two and a half months. Philippine authorities, in an effort to calm the standoff, followed suit and declared a similar ban. But contrary to the ban, no less than 20 Chinese fishing boats remain in the lagoon of the shoal, an area that is approximately as big as Quezon City. This number is in addition to no less than three Chinese government vessels in the area. This is clear doublespeak.

Despite China’s doublespeak, President Aquino still ordered our two remaining government vessels in the area to leave. The pretext was the onslaught of a powerful typhoon. But diplomatic pundits do not buy this. They say that the real reason is that our policy makers probably miscalculated that China, like us, would want to reduce the tension the area. They hoped that Chinese authorities would reciprocate the order for our vessels to leave. This did not happen.

At least, it is now clear that China does not intend, or wish, to scale down its action. It is also now clear that China will not settle for anything less than our relinquishment of our claim to the shoal. This is their desired end-result when they espouse a “diplomatic” solution to the standoff.

The question in our mind is why is China taking this position only now? And why the brazenness of its acts?

Observers posit that China’s actuations are a precursor of further trouble to come. The real battle ground is Recto Bank where we are about to drill for oil. Our responses to Chinese provocation in the shoal will in turn determine their future actuations in Recto Bank. On the basis of their current track record in the shoal, we should expect the Chinese to send its entire Armada to Recto should we persist in our effort to drill for oil in the area. Already, China has announced that it would conduct military exercises aimed at defending their perceived right to explore for mineral deposits in the West Philippine Sea. This is a clear message that China will use its recently acquired military might to defend its interest in these troubled waters.

It is imperative for Philippine policymakers now to acknowledge this state of affairs. Yes, diplomacy is the preferred mode of international dispute settlement. But this is only when the parties to the dispute observe good faith in their negotiations to arrive at a mutually acceptable solution to the dispute. It cannot be the solution when the Chinese view is that diplomacy should only result in our recognition of their claim to the area.

I have consistently argued hence that the only recourse for the country is to resort to the binding and mandatory dispute settlement procedure of the UNCLOS. The question was asked recently in a forum sponsored by the Ortigas library on why the Philippines has not brought the matter earlier to this dispute settlement body.

Professor Randy David had a notable observation. President Gloria Arroyo, according to him, courted Chinese support precisely by sitting on our options in asserting our national territory. This appears plausible given that instead of asserting our sovereignty, PGMA and her cohorts at the DFA and other line agencies—many of whom have recycled themselves as being pro-P Noy today—allowed the Chinese to engage, among others, in the exploration of our natural resources through the Joint Maritime Seismic and Exploration Agreement of the West Philippines Seas and the grant of mining grants in Diwalwal and North Davao to the company behind the botched National Broadband Network, ZTE Corporation. This is, many believe, in return for the many fraudulent Chinese funded projects entered into by the Arroyo regime, including the Northrail contract and the NBN-ZTE deal. In short, it was territory in exchange for pay-offs, or “tongpats.”

It is hoped that President Aquino will hence assert Philippine sovereignty in territories that are in fact ours. The starting point is a clear and unequivocal declaration from a body such as the International Tribunal on the Law of the Sea on which country is entitled to explore and exploit the natural resources in Panatag and in the Kalayaan group of islands.